Official Report 155KB pdf
Licensing (Scotland) Act 2005: Draft Guidance for Licensing Boards and Local Authorities (SE/2007/9)
We were concerned that there were minor errors in the draft guidance, despite its withdrawal for correction. We sought assurances from the Executive that the second version does not contain more substantial errors that may affect the lead committee's consideration.
We should draw those points to the attention of the Executive, but I am concerned that the time that is available means that our only recourse may be to draw the points to the attention of the lead committee.
We have a choice. We can write to the Executive and wait for a reply or we can simply report our concerns to the lead committee, as we have already written to the Executive, which did not find anything additional. What we do is up to members.
When we discussed this last week it was clear some further points would inevitably arise, whether minor or major. The submission from Mr Ferguson raises significant rather than minor issues. My memory of the control of order is that it is about vicinity, rather than a causal connection, and I think that most members would be surprised if there had to be a causal connection, which would markedly change how that operated. That is significant, and is perhaps not what the act intended.
I do not see why we should not write to the Executive, which has ultimate responsibility for these matters. We can discharge our duty simply by saying, "There you are." It will be fine if the Executive responds; if it does not, that will be its problem. However, we should certainly report our concerns to the lead committee.
I agree with Stewart Maxwell. We have already given the Executive a go. I do not know what would be gained by writing to it again.
These are important points. I wonder whether we could do a double act. We could write to the Executive to highlight the points to it. At the same time, because we are not yet going to send a final report to the lead committee, the clerks could highlight to it the points that it should be aware of. We could then send a final report to the lead committee next week.
How much time do we have left?
I think that we have another week.
The deadline for reporting is 14 February.
So there is time for one more crack at the issue.
Yes.
Time is tight, but we could have another crack at it. An Executive response would be helpful, but I think that we will end up doing next week what we could do before then by reporting to the lead committee on the points that have been made.
We could informally alert the lead committee to the important issues that have been raised. Do members agree?
Prohibition of Fishing with Multiple Trawls (No 2) (Scotland) Amendment Order 2007 (SSI 2007/13)
We raised four points on the order with the Executive. Members have seen the Executive's response and will note that the order will be made available free of charge, which is what we asked for.
Have you jumped over a point, convener?
No.
Perhaps not. I am sorry—on you go. I thought that you moved from point 1 in the legal brief to point 3.
The third point is that the form or meaning of the order could have been clearer at article 3(2).
That explains it.
With respect to point 3, should we say that there has been defective drafting or a failure to follow legislative practice?
A failure to follow legislative practice.
Okay. That deals with point 3, which was our second main point. Technical things can be made difficult.
Where is the third point in the legal brief?
Point 3 is covered on page 17.
Is that what we are talking about?
Yes. We are on to that now.
Do you want me to find what we are discussing in the legal brief?
If I know which paragraph we are discussing, I will know for sure what we are talking about.
I am looking at the convener's brief, so give me two seconds to find the paragraph in the legal brief.
I am sorry, but I have lost the place.
That is okay. Paragraphs 93 and 94 deal with point 3.
Is that what we are discussing?
We were talking about timing.
Yes. The revocation of an instrument was involved. The instrument should have been revoked on the previous day.
Yes, that was it. Do you remember?
Yes, I do. I am sorry.
No problem.
Have we dealt with point 4 in the legal brief?
Yes. We could draw the attention of the lead committee and the Parliament to the order on the ground that its form or meaning could be clearer at article 3(2).
Did you cover that point?
Yes. Do you want me to go over it?
No. I am sorry; I missed what was said.
That is okay.
Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2007 <br />(SSI 2007/14)
We asked the Executive to confirm what power in the parent act authorises the retrospective effect of regulation 2(2). The Executive has confirmed that the regulations have retrospective effect, although only in so far as they apply to specified inclusive fees for work that is done in certain cases. It has also confirmed that the Legal Aid (Scotland) Act 1986 does not contain an express enabling power for the making of retrospective provisions.
We should raise the matter. Our legal brief mentions the McCall v the Scottish Ministers case, but that is not a good example as it involved reducing, rather than increasing, fees. A completely different effect was involved. People lost out and a European convention of human rights issue was involved. That is very different from what we are dealing with now. I think that we should report the regulations in the way that is suggested in paragraph 109 of the legal brief.
Is that agreed?
Tweed Regulation Order 2007 (SSI 2007/19)
We asked the Executive to explain why it chose to use a combination of powers in the order, not all of which are subject to parliamentary procedure, and why it chose to disregard the requirement in article 36(1) of the principal order—the Scotland Act 1998 (River Tweed) Order 2006 (SI 2006/2913)—regarding the citation of instruments made under that provision.
Yes.
That is about the combination of enabling powers, which are subject to different procedures. Do we want to report the order on the ground of failure to follow proper legislative practice or on that of defective drafting with respect to compliance with article 36(1) of the principal order?
Failure to follow proper legislative practice.
Yes, I think so.
I should refer to my entry in the register of members' interests, as president of an angling association in the area concerned.
Have you been referring to paragraph 125 of the legal brief?
Yes.
It says:
That is but one opinion. I do not think that the matter merits reporting, frankly.
Okay.
But then I could be in a minority of one.
No—I think that what Euan Robson says forms part of a general point about whether other committees understand the references we make when we report to them. I sometimes worry about the tone or language that we use when we raise an issue and mention a "failure to follow proper legislative practice". I agree with Euan Robson about the very minor point that has been raised in this case—although it is correct, in that our legal advisers have pointed out that proper legislative practice would indicate the inclusion in the title of the instrument of certain words that have not been included.
It can cover the full range, starting with something fairly minor. We mention our concern if that is appropriate.
But it is nearly always about a minor point, is it not? "Defective drafting" is a step up—it is a bit more serious. "Failure to follow proper legislative practice" is used for minor matters. I am not sure whether our colleagues in other committees know that. We almost have a language of our own.
Perhaps it would do no harm to give a bit of clarification. We could clarify the explanation of the point we are discussing. We could mention that it is a minor point.
I suggest that it is something to bear in mind long term, which we could mention in a legacy paper, if we produce one. We use terms such as ultra vires and have a scale on which we report issues that arise with Scottish statutory instruments. By way of comparison, a report from Her Majesty's Inspectorate of Education tells readers how to interpret it and explains what fair, unsatisfactory, good and excellent mean. I think that we need to do something similar for SSIs. Either that or we need to moderate our language and use plainer English.
That is a good point. In relation to the order, the first point is more serious and the second is relatively minor.
They are both minor.
I think that the legal advisers would argue that the first point is not so minor. It is about using two, different, procedures.
The first point is a much more valid one to make—although that is not to agree completely with what has been said about the second point. The first point is about different powers with different outcomes. It is about putting two different things in the same place, which I think is unwise and unhelpful, particularly as some of the powers can be affected by parliamentary procedure whereas others cannot. It is very odd to have those powers in the same instrument. That is a substantive point.
As Ken Macintosh said, we can take that on board for later. Are we agreed? We will report the order as has been proposed, on the ground that it does not follow proper legislative practice. I know that Euan Robson said something slightly different, but is the rest of the committee in agreement?
When it comes to the term "legislative practice" we are governed by standing orders. If the committee decides to report, it has to choose from the terms that are available under standing orders. There have been times when the committee has not wanted to go so far as to report on the matter. In such cases, it has drawn attention to something using correspondence—it has printed its correspondence to the Executive and the Executive's reply and drawn the lead committee's attention to that. That is another option. A report, in which other, more important, matters are raised, could include such correspondence if the committee wished to do things that way.
I think we will stick with what we have normally done. Is that agreed, for the moment? We will keep that in mind for the future. You have made a good point, Ken.
Raising and overstating inconsequential points undermines our case when we raise serious points.
It does.
It is self-defeating.
Yes. We will have a think about that.
I understand what Ken Macintosh is saying: we would not raise a serious point and call it "failure to follow proper legislative practice".
No—we would call it a matter of great concern.
We would not use a phrase such as "defective drafting" to raise a serious point. Ruth Cooper is quite right to mention that we are following the rules that are laid down in standing orders.
I think that we are agreed on this.
I think that we probably are.
Okay. Let us move on.